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be divided by north and south lines run ac- new evidence discovered. The controversy cording to the true meridian, and by others has already been before the courts for upcrossing them at right angles, so as to form wards of eight years. Two of the original townships of six miles square. * * * The plaintiffs have died since its commencement. township shall be subdivided into sections, Should a new trial be awarded, counsel will containing, as nearly as may be, six hun- not only be deprived of their advice and dred and forty acres each, by running assistance in conducting the litigation, but through the same, each way, parallel lines their lips are also sealed. It is true that at the end of every two miles; and by mark- the testimony of these parties, as taken uping a corner of each of such lines, at the on a former trial, is preserved in the record; end of every mile. The sections shall be but I apprehend that this testimony would numbered respectively, beginning with the be of but little avail upon a new trial, upon number one in the northeast section and pro- the question of the authenticity of the alceeding west and east alternately through leged newly-discovered corner, as their testithe township with progressive numbers till mony upon the former trial was not directed the thirty-six be completed. * * * Where to this point. For the reasons given, the the exterior lines of the townships which judgment should be affirmed. may be subdivided into sections or half sections exceed, or do not extend six miles, the ELLIOTT, J. (concurring with the CHIEF excess or deficiency shall be specially noted, JUSTICE on one point). The attempt to imand added to or deducted from the western peach the former judgment on the ground and northern ranges of sections or half sec- of fraud is practically abandoned, but it is tions in such township, according as the insisted that plaintiff is entitled to a new error may be in running the lines from east trial on the ground of newly-discovered evito west, or from north to south."

dence. Plaintiff was possessed of the newIt is conceded that section 31 is in the ly-discovered evidence for a period of about southwest corner of township number 13, five months, during which time he could and in the west tier of sections, and that have had the former judgment vacated, and the shortage should, under the statute, fall a new trial allowed, by making application in section 31, while the attempt in this case therefor to the court in the former action, in is to deduct the shortage entirely from sec- accordance with the statute. That mode of tion 32, and none from section 31; and to relief was plain, speedy, and adequate. In accomplish this a new trial is asked for the my opinion, plaintiff's negligence in not purpose of establishing the controverted making application to have the former judgcorner at a place other than that called for ment vacated is conclusive against his right by the original field notes on file in the sur- to seek the same relief by another action in veyor general's office, and to set aside the | the nature of a bill of review. To this exlines as established in the trial at law, and tent I concur in the opinion of Chief Justice substitute therefor other lines that have HAYT. My Brother GODDARD concedes been run in direct violation of the United that if plaintiff had opportunity to apply for States statutes. In support of this propo- a new trial on the ground of newly-discoversition a number of cases have been cited in ed evidence, under section 217 of the Code, which it has been held that the monuments and neglected so to do, he would be precludplaced upon the ground must control, but in ed from seeking relief upon the same ground none of these cases has the discrepancy be- in a suit in equity. I am unable to see why tween the monuments and the lines as they his neglect to apply for a new trial under should have been surveyed under the statute section 272 of the Code should not have the been more than a few feet, and it may well same effect. To have secured a new trial be doubted whether the rule giving prefer- under section 217 would have required a ence to monuments should be extended to a showing of diligence which might have been case like the present, even in an action at difficult to make, whereas he was entitled to law; but, however that may be, after the a new trial under section 272 as of right, lines bave been once established, as in this without showing cause; and the new trial, case, after a protracted litigation at law, a whatever the mode of obtaining it, would court of equity should not set aside a judg- have afforded him the same relief. As to ment fairly obtained, in order to maintain a other questions so ably discussed by my assurvey that is illegal, if not fraudulent. sociates, I express no opinion. Affirmed. Where a trial has been had and a judgment rendered at law, the judgment should not GODDARD, J. (dissenting). After a carebe set aside, and a new trial awarded in ful and thorough examination of the record equity, unless by so doing the ends of jus- presented, I am unable to concur in either tice will be subserved. Such a case, in my the conclusion of my learned associates or judgment, is not disclosed by this record. in the reasoning upon which that conclusion Here we are asked to set aside a judgment rests. It is of little moment, so far as the upon a finding that the newly-discovered cor- question before us is concerned, what the ner is established by a preponderance of the testimony of any individual witness was beevidence only, in a suit instituted years fore the trial court, since that court, in the after the judgment was rendered and the exercise of its peculiar province, has found

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that the weight of the testimony introduced found by the court below? The “Snider sustained certain conclusions of fact, and, Monument,” as it is termed, is found to be under the well-settled doctrine of this court, the true government corner as established these findings must be accepted as correct, by the original government survey, and in and are not open for review upon appeal. place as originally located. Plaintiff used Warren v. Adams, 19 Colo. 515, 36 Pac. 604; reasonable diligence to discover it before Nixon v. Harmon, 17 Colo. 276, 29 Pac. 808; the trial at law. Adopting it as the true Lundy v. Hanson, 16 Colo. 267, 26 Pac. 816; north corner for sections 31 and 32, a line Riley v. Riley, 14 Colo. 290, 23 Pac. 326; correctly run therefrom to the south townMining Co. v. Musgrave, 14 Colo. 79, 23 Pac. ship line between these sections places the 458; Rollins v. Board of Com'rs, 15 Colo. caverns in question in section 31. If all 103, 25 Pac. 319; Publishing Co. v. Russell, 18 these things be true,-and we must assume Colo. 75, 31 Pac. 503; Wallace v. Giltinan, they are on this appeal,-it would seem to 18 Colo. 473, 33 Pac. 185.; Castner v. Rich- admit of but little question that the appelardson, 18 Colo. 496, 33 Pac. 163. The sole lant exercised the requisite diligence, or as question, therefore, for our consideration, is to the sufficiency of the newly-discovered whether the facts found by the trial judge evidence, if verified to the satisfaction of are sufficient to entitle the plaintiff to relief the jury, to produce a different and decisive in equity and to a new trial upon the ground result on another trial. of newly-discovered evidence. It is well set- But it is said that if it be conceded that tled that equity will enjoin a judgment at the newly-discovered stone is properly aulaw when its enforcement is against con- thenticated, and admitted to be where it was science, and grant a new trial upon newly- originally placed by the government surdiscovered evidence material to and con- veyor, it appearing that it was incorrectly clusive upon the merits, which the aggriev- placed, as shown by the field notes of the ed party could not have produced upon the original survey, it will be inequitable to trial at law by the exercise of proper dili- give appellant an opportunity to utilize it, gence, or of which he could not avail him- even if a true corner, by awarding him anself by reason of some accident, mistake, or other trial. Suffice it to say, the survey as circumstance beyond his control. Judge made and marked upon the ground, whether Story, in his work on Equity (volume 2, $ incorrectly or not, fixed the boundary line 894), states the rule on this subject as fol- between these sections, and it is not the lows: “Relief will be granted where the de- province of the courts to correct government fense could not at the time, or under the cir- surveys of public land, or establish lines cumstances, be made available at law, with-coutrary to such surveys, however incorout any laches of the party. Thus, for in- rect they may be. As was said in Cragin stance, if a party should recover a judgment | v. Powell, 128 U. S. 691, 9 Sup. Ct. 203: at law for a debt, and the defendant should “Whether the official survey

is afterwards find a receipt under the plain- erroneous

• is a question which was tiff's own hand for the very money in ques- not within the province of the court below, tion, the defendant (where there was nor is it the province of this court to conlaches on his part) would be relieved by a sider and determine. The mistakes and perpetual injunction in equity. So, if a fact abuses which have crept into the official material to the merits should be discovered surveys of the public domain form a fruit. after a trial, which could not, by ordinary ful theme of complaint in the political diligence, have been ascertained before, the brancbes of the government. The correr like relief would be granted." Among the tion of these mistakes and abuses has not many autliorities that might be cited to the been delegated to the judiciary. same effect, see 3 Grah. & W. New Trials, That the power to make and correct sur. 455; 1 High, Inj. $ 112 et seq; Cox v. Rail- veys of the public lands belongs to the poroad Co., 44 Ala. 611; Floyd v. Jayne, 6 litical department of the government, and Johns. Ch. 479; Carrington v. Holabird, 17 that, while the lands are subject to the suConn. 530; Baltzell v. Randolph, 9 Fla. 366. pervision of the general land office, the de. The circumstances under which equity will cisions of that bureau in all such cases, like interpose because of newly-discovered evi- that of other special tribunals upon matters dence are summed up by Black, in his work within their exclusive jurisdiction, are unon Judgments (volume 1, $ 386), as follows: assailable by the courts, except by a direct "(1) The evidence must have been discover- proceeding; and that the latter have no coned since the trial. (2) It must be evidence current or original power to make similar that could not have been discovered before corrections.-if not an elementary principle the trial by the plaintiff or defendant, as the of our land law, is settled by such a mass case may be, by the exercise of reasonable of decisions of this court that its mere statediligence. (3) It must be material in its ob- ment is sufficient.

The reason of ject, and such as ought, on another trial, to this rule, as stated by Justice Catron in the produce an opposite result on the merits. case of Haydell v. Dufresne, is that great (4) It must not be merely cumulative, cor- confusion and litigation would ensue if the roborative, or collateral.”

judicial tribunals, state and federal, were Are these conditions met by the facts permitted to interfere and overthrow the

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public surveys on no other ground than an new trial, under chapter 23, Code Civ. Proc., opinion that they could have the work in precludes him from invoking this equitable the field better done, and divisions more relief. It is to be inferred from the citations equitably made, than the department of pub- in support of this conclusion that it is predilic lands could do.' 17 How. 30." Lands are cated upon the well-settled doctrine that granted by the government according to the equity will not interfere where there is a official survey, and by his patent from the plain and adequate remedy at law, and that government the appellant acquired title to the statutory right of a defeated party in an the land conveyed thereby as described and ejectment suit to avail himself of a new trial designated by such survey, and the locus of upon request therefor, and the payment of his land is to be ascertained by reference to it the costs by the first day of the next term, and the original landmarks placed on the affords an adequate legal remedy, and hence ground by the government surveyor. It is is exclusive, if available under the circumequitable that this should be done in this stances. The unsoundness of this reasoning case.

is apparent, when we consider the reason It is undisputed that about June 1, 1881, upon which equity refuses its aid. It is beappellant discovered the caverns in ques- cause a way has been provided to obtain retion, and took immediate steps to pre-empt dress at law upon the same grounds that are and acquire title to that portion of section relied on for its interference, and if such 31 which, according to the government sur- way has been neglected, or the relief has vey, as actually made, included them; and, been denied at law upon a fair hearing, it whether correct or not, the location of the refuses to act. And I concede that if the E. 42 of the N. E. 14, and the N. E. 14 of the plaintiff had an opportunity to apply for a S. E. 44, not only must but in justice ought new trial upon the ground of newly-discovto be determined by such survey, and not ered evidence, under section 217, c. 17, Code by the survey upon which the lines were Civ. Proc., and neglected to do so, he is preestablished at the last trial, based, as it was, cluded from seeking relief upon the same upon the theory that the true corner was ground in a suit in equity. But it is clear lost. The cases are numerous which sus- and undisputed that he had no such opportain the proposition that monuments placed tunity. When he discovered the corner in upon the ground by the government surveyor June, 1888, the time had passed in which control, when a discrepancy exists between he could present a motion for a new trial on them and the courses and distances the merits, and the only way he could theregiven in the field notes, and I do not find after obtain a new trial, upon the ground of any case in which it is held that the extent newly-discovered evidence, was by the aid of the discrepancy changes this rule. Among of equity. Relief upon this ground could them are the following: Mayor of Liber- not, in my judgment, be invoked under secty v. Burns, 114 Mo. 426, 19 S. W. 1107, tion 75 of the Code. It is unquestioned that and 21 S. W. 728; Knight v. Elliott, 57 a motion for a new trial upon the ground of Mo. 317; Climer v. Wallace, 28 Mo. 556; | newly-discovered evidence may be made conBruckner's Lessee V. Lawrence, 1 Doug. currently with an application to vacate the (Mich.) 19; Nesselrode v. Parish, 59 Iowa, judgment, upon payment of costs, under 570, 13 N. W. 746; Johnson v. Preston, 9 chapter 23; and, if this be so, it seems to me Neb. 474, 4 N. W. 83; Thompson v. Harris that it logically and necessarily follows that (Neb.) 58 N. W. 712; Ogilvie v. Copeland a suit in equity will also lie for the same (I11.) 33 N. E. 1083; Beardsley v. Crane, 52 purpose concurrently with such application, Minn. 537, 54 N. W. 740; Hess v. Meyer, 73 if the time has elapsed for filing the motion Mich. 259, 41 N. W. 422; George v. Thomas, when the evidence is discovered. “The stat16 Tex. 74; Pollard v. Shively, 5 Colo. 309; utory remedy by motion

is only Cullacott v. Mining Co., 8 Colo. 179, 6 Pac. available during the term at which the judg211.

ment is rendered, and in many cases a denial Why should the mistake of the govern- of the most obvious justice would result from ment, in disposing of its land upon an in- holding this remedy exclusive. The assistcorrect survey, be invoked to destroy the ance of equity cannot be invoked so long as litle of a bona fide purchaser in actual pos- the remedy by motion exists; but when the session? and why is not such a purchaser's time within which a motion may be made claim to the land entitled to recognition and has expired, and no laches or want of diliprotection in equity as well as at law? It gence is imputable to the party asking relief, seems to me that the rule invoked by appel- there is nothing. in reason or propriety, prelees, and announced by the chief justice, venting the interference of equity.” Bibend that the mistake of the government surveyor v. Kreutz, 20 Cal. 110. Counsel for appellees should be visited upon the unoffending head does not place much reliance upon the claim of appellant, is somewhat in the nature of a that the attempt to obtain a new trial by the vicarious punishment.

payment of costs estops plaintiff from invokThe remaining proposition decisive of this ing equitable relief, but insists, rather, that appeal, it being the only one upon which my the delay in bringing the suit constitutes learned associates agree, is that the abortive laches that bar his right to the remedy, and attempt and failure of plaintiff to obtain a the prosecution of his appeal from the judgment-denying him a new trial, under chap- , be such as to impute negligence to the party ter 23, did not excuse him from instituting who seeks relief." Not only lapse of time, this action while such appeal was pending. but other circumstances, must usually interHis contention upon this matter cannot be vene to successfully invoke the doctrine of better expressed than in his own language. laches. Every case is governed by its own He says: “It is said he had a right to prose- circumstances, and whether delay is sufficute this appeal. We do not question it. cient to effectually bar the remedy is to be But was it a prerequisite to the institution of resolved in the light of those circumstances. a suit in equity to avoid the judgment, the In the case of Dunne v. Stotesbury, 16 Colo. merits of which were not involved in the ap- 89, 26 Pac. 333, Justice Elliott, speaking for peal? We think clearly not. Had the suit the court, said: "When there has been unreathen been instituted, we submit it could not sonable delay in bringing suit, courts of eghave been dismissed on the ground that the uity sometimes refuse relief, even though plaintiff had a plain, adequate, and certain the statutory period of limitations has not remedy at law by appeal. Surely, the dis- expired; but this is generally in cases where trict court could not have so held without acquiescence amounts to a tacit recognition nullifying its own judgment, denying the mo- of the rights of the party in possession, and tion for a new trial. It is a fundamental rule where the assertion of adverse rights is rethat courts of equity are open to suitors in garded as not only inconsistent, but uncon. all cases when the remedy at law is not scionable, or where other equitable considerplain, certain, and adequate.” It is appar- ations equally strong are established." In ent, therefore, that the learned counsel did this case the property in question has renot regard the application under the statute

mained in statu quo. The proceeds derived as exclusive, nor even a justification for de- from the undivided interest that appellees lay in bringing the present action, and he claim in the caverns have been preserved by presents what I regard as the only debatable the appointment of a receiver. The appelquestion growing out of the pendency of that lant has not slept upon his rights, but has application, and that is whether the delay in persistently and continually attempted to obbringing this suit, while it was pending in

tain relief from the judgment. Nor can the the court below and on appeal, constitutes appellees be prejudiced by loss of witnesses laches that should bar the right to maintain by death or removal from the jurisdiction of it. Appellant brought this action immediate- the court, since their evidence taken upon the ly upon the decision of that appeal. The rea- former trials is preserved in the record, son of this delay is apparent from the his- and may be resorted to upon another trial. tory of the law action, as set forth in the Mining Co. v. Musgrave, supra. None of complaint. When the second trial resulted these equitable considerations have interin an unfavorable verdict and judgment, he

vened, and I can see no reason why the deattempted to obtain a new trial under the lay in instituting this suit should deprive statute. He relied upon a procedure which appellant of relief from a judgment mani. the court below finds to have been the gen- festly inequitable, a delay attributable soleerally understood practice in the nisi prius ly to a mistake in regard to an unsettled courts, and paid the costs, but took no fur- practice, and one that might easily have been ther steps in apt time to have the judgment | avoided by appellees had they seen fit to vacated. At the time appellees took advan

waive a technical default and submit to a tage of his default in this regard several

trial upon the merits. I am clearly of the terms of court had elapsed; yet, believing it opinion that the court below erred in disnecessary to prosecute an appeal from the missing the complaint, and in not granting a judgment, striking the case from the docket new trial, upon the ground of newly-discov. and refusing him a new trial, before institut-ered evidence, although correct in its concluing his suit in equity, he pursued that course.

sion that the facts were insufficient to overWhile he may not avail himself of this mis.

throw the judgment on the ground of fraud; take of law to escape the effect of that judg- and that the judgment should be reversed. ment, it may be taken into consideration as rebutting any intentional or willful delay in

(21 Colo, 21) seeking his equitable remedy; and although it is true that immediately on discovering

SCHWARTZ v. BIRNBAUM. the new evidence, or upon the rendition of

(Supreme Court of Colorado. Feb. 18, 1893.) that judgment, he might have instituted his

EXEMPTIONS- ConstruCTION OF STATUTE - Resipresent action, his failure to do so, under the

DENCE APART FROM FAMILY-SELECTION

OF EXEMPT PROPERTY. circumstances, I do not think in itself consti

1. Defendant, the head of a family, came tutes such laches as should bar him from from New York to Colorado, intending to live the present remedy, if upon other grounds lie there permanently, and to remove his family is entitled thereto. As was said in this court

there when able. When he left New York his

family went to Pennsylvania, and were never in the case of Warren v. Adams, supra:

in Colorado, Held, that defendant was not “re“Length of time alone is not sufficient to jus- siding with” his family in Colorado, so as to extify the court in refusing equitable relief.

empt stock in trade in his possession, under

Mills' Ann. St. $ 2562. The circumstances under which the delay oc- 2. Where only part of property levied on is curred, together with the lapse of time, must claimed to be exempt, the mere demand by the execution defendant of his right to select is not says, “as soon as he was fixed to receive equivalent to making the selection, so as to per- them." He never resided with his family in fect the right of exemption.

this state; that is, the wife and children 3. Where a writ of attachment has been levied upon a stock of goods, part of which had never been in Colorado, they residing are claimed as exempt, and part are confessedly temporarily in the city of Philadelphia dursubject to the attachment, an order of court

ing all the time that defendant himself had releasing all the property attached is error.

been in Colorado. Two or three months beAppeal fronı Arapahoe county court.

fore the levy of this writ he had sent to his Action by Max Schwartz against Sigmund family money with which to pay the exBirnbaum, accompanied by writ of attach- penses of a removal to Colorado, and, alment. There was a judgment in the justice though they sent on some furniture, they court for the amount of his claim and an or

themselves have never arrived. The propder sustaining the attachment. From a judg

erty which defendant claims as exempt from ment of the county court, reversing the order

levy was his stock in trade, used and kept of the justice court sustaining the attach- for carrying on his business, and the value ment, plaintiff appeals. Reversed.

was less than $200. There is no evidence to Max Schwartz, the appellant, who was

show what are the specific articles which the plaintiff below, brought his action against

defendant claims to be exempt, further than Sigmund Birnbaum, the appellee and defend

that the articles are a part of his stock of ant, to recover the sum of $258.41, which

gentlemen's furnishing goods, and that they plaintiff alleged to be due upon a contract,

are no part of the goods which he bought and that the demand sued upon was on an

from plaintiff. While the record is not exoverdue book account. Plaintiff sued out a

plicit, it appears that the issue was tried in writ of attachment in aid of his action, and

the county court upon the same affidavit that the same was levied, as shown by the re

was filed by the defendant in the justice's

court. turn to the writ, upon defendant's "stock of

There is no evidence that any declothing, shirts, notions, and anything in

mand for exemption was made by the de

fendant at the time of the levy of the writ, store 3205 Larimer street,” and by leaving a copy of the writ with defendant. The de

nor is there any evidence that at any time fendant filed in the justice's court his affida

a selection of the property claimed to be exvit of exemption, which, omitting the title,

empt was ever made by defendant. The on. is as follows: "S. Birnbaum, above-named

ly claim that the defendant makes, so far as

the evidence shows, was that embodied in, defendant, being duly sworn, deposes and says that he is a married man, and the head

and asserted by, the affidavit which has been of a family, and is a resident of Colorado,

heretofore set out in full; but he never, by and is entitled to the benefit of the exemp

any word or act, otherwise attempted to extion laws of said state, and that he claims

ercise the right of selection which he as

serted in his affidavit. The statute under all the property attached in said case as exempt, except the property he bought of the

which the appellee claims that he is entitled

to the right of exemption is, in substance, plaintiff, and he demands the right of selection thereof." The defendant apparently

as follows: The stock in trade, used and did not contest the validity of the claim sued

kept for the purposes of carrying on his upon. In the justice's court a judgment was

trade or business, not exceeding $200 in valrendered in favor of the plaintiff for the

ue, when the same is owned by any person amount of said claim, and an order was

being the head of a family and residing with made sustaining the attachment. From this

the same, shall be exempt from levy and sale order sustaining the attachment an appeal

under any execution or writ of attachment. was taken to the county court, and upon

Gen. St. § 1866; Mills' Ann. St. § 2562. trial there the county court found the issues J. W. Horner and J. E. Robinson, for appelin favor of the defendant, and ordered that lant. George A. Smith, for appellee. all the goods levied upon should be released, and returned by the plaintiff to the defendant. From this judgment of the county court

CAMPBELL, J. (after stating the facts). the plaintiff comes here with his appeal.

The questions sought to be raised by this apThe only testimony given was that by the

peal may be stated as follows: First. Was defendant himself. It is to the effect that

the defendant, under our statute, a person at the time of the levy of the writ of attach

entitled to the exemption of his stock in trade? ment the defendant was a married man, and

Second. Has he made his claim for exemption the head of a family, consisting of his wife in the proper time and manner? Third. Does and two children, who were dependent upon

the claim and evidence justify the judgment him for support. He was conducting a small

rendered by the county court? shop for the sale of clothing and gentlemen's That the defendant at the time of the levy furnishing goods in the city of Denver, and

of the writ of attachment was the head of had been engaged in such business here for a family admits of no doubt. That he was about 16 months. He came from the city of then “residing' with the same is not true in New York with the intention of settling in the literal or ordinary sense of the term. But this state, and sending for his family to come

it is contended by the appellee, as our constito Colorado to make this their home, as he tution enjoins upon the legislature the enact

v.39p.no.4427

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